Intentional act by co-worker; The duty of care regarding mental harm

Although not a medical claim, Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21 is of interest for its consideration of mental harm issues by the Court of Appeal (NSW).

The appellant, Glenn Wright, claimed damages for psychological injury as a result of an attempt by a co-worker, Nathaniel George, to murder him by attempting to throw him from the roof of the Optus premises.

As a result of the incident, Mr Wright suffered a blow to the head, occasioning no compensable loss. He later developed chronic severe post-traumatic stress disorder.The trial judge found that the relationship between Optus and Mr Wright was analogous to that of employer and employee, even though Mr Wright and Mr George were both employed by labour hire companies that had supplied their services to Optus. The primary judge also found that Optus’ duty of care to Mr Wright extended to taking reasonable care to protect him from the criminal acts of others in the workplace.

On appeal the Court held (per Basten JA (Hoeben JA agreeing); Gleeson JA dissenting) that:

1.   The primary judge impermissibly aggregated the knowledge of various employees of Optus and then attributed that knowledge to the corporate employer for the purpose of demonstrating negligence on the part of Optus: at [52].

2.   Optus did not owe a duty of care directly to Mr Wright with respect to mental harm satisfying the requirements of s 32 of the Civil Liability Act: at [67] (Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22 considered).

3.   Absent an express finding by the primary judge (and there was none) that an assault of the severity inflicted by Mr George, being intended to put Mr Wright’s life in peril, was something which Optus ought to have foreseen and which it should reasonably have foreseen might cause a person of normal fortitude to suffer a psychiatric illness, Optus was under no duty to take reasonable care to protect Mr Wright against mental harm: at [69].

4.   It was not probable that any of Optus’ staff knew or should have known that Mr George might, as a possibility, attempt to kill or violently assail the plaintiff in a way which might cause a person of normal fortitude to suffer a psychiatric illness. Absent such a finding, (a) none of them owed the plaintiff a duty of care with respect to mental harm and (b) Optus could not be vicariously liable to the plaintiff: at [96].

At [36] Basten JA noted that one  effect of s 32 of the Civil Liability Act 2002 (NSW) is to require a particular and separate inquiry into the existence of a duty of care with respect to mental harm. The section imposes a qualification on the test of reasonable foreseeability by specifying three elements that the defendant ought to have foreseen, namely, (a) that “a person of normal fortitude” might (b) “in the circumstances of the case” suffer (c) “a recognised psychiatric illness”, if reasonable care were not taken.

At [62] Basten JA further commented that it would not have been sufficient to ask “what is the chance of one call-centre trainee assaulting another”, but rather it would be necessary to ask “was it reasonably foreseeable that one call-centre trainee might assault another in a manner which, although it caused no physical injury, might nevertheless be so serious as to lead to a psychiatric illness in a person of normal fortitude?”



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